V. Conclusion: The Emancipatory Potential
of Decriminalization

What are so-called "sodomy" laws for?

South Africa's Constitutional Court justice Albie Sachs,
concurring with the historic decision to overturn his country's law against
sodomy, wrote:

It is important to start the analysis by asking what is
really being punished by the anti-sodomy laws. Is it an act, or is it a person?
Outside of regulatory control, conduct that deviates from some publicly
established norm is usually only punishable when it is violent, dishonest,
treacherous or in some other way disturbing of the public peace or provocative
of injury. In the case of male homosexuality however, the perceived deviance is
punished simply because it is deviant. It is repressed for its perceived
symbolism rather than because of its proven harm. …. Thus, it is not the act of
sodomy that is denounced… but the so-called sodomite who performs it; not any
proven social damage, but the threat that same-sex passion in itself is seen as
representing to heterosexual hegemony.[174]

The legal scholar Dan Kahan writes that "Sodomy laws, even
when unenforced, express contempt for certain classes of citizens."[175]
This contempt is not simply symbolic. Ryan Goodman, in exhaustive research
based on interviews with lesbian and gay South Africans before the sodomy law
was repealed, found the statutes have multiple "micro-level" effects.These
impacts are independent of occasions when the law is actually enforced. To the
contrary: even without direct enforcement, the laws' malign presence on the
books still announces inequality, increases vulnerability, and reinforces
second-class status in all areas of life.

The laws "disempower lesbians and gays in a range of
contexts far removed from their sexuality (for example, in disputes with a
neighbor or as victims or burglary)," Goodman writes. They influence other
areas of knowledge: "the criminalization of homosexual practices interacts with
other forms of institutional authority, such as religion and medicine." The
statutes empower social and cultural arbiters to call the homosexual a
criminal. Goodman concludes that "The state's relationship to lesbian and gay
individuals under a regime of sodomy laws constructs … a dispersed structure of
observation and surveillance. The public is sensitive to the visibility of
lesbians and gays as socially and legally constructed miscreants."[176]

This report suggests that the colonial-era sodomy laws
ultimately became, not punishments for particular acts, but broad instruments
of social control. They started as invaders' impositions-an alien framework to subdue
subject populations-and have morphed over time into alleged mirrors of a
supposedly originary moral sense. States use them today to separate and
brutalize those beyond those postulated primal norms. They are terms of
division and tools of power.

The real impact of sodomy laws-the way they single out
people for legal retaliation, and make them ready victims of other forms of
violence and abuse-appears in stories from six countries addressed in this report.

India

In July 2001, police in Lucknow arrested four staff
members from two organizations that combated HIV/AIDS among men who have sex
with men. The HIV/AIDS outreach workers from Naz Foundation International
(NFI)'s Lucknow office and from Bharosa Trust were charged under Section 377 as
well as with criminal conspiracy and "sale of obscene materials": the police
interpreted distributing information about AIDS prevention as running a gay
"sex racket."

They were jailed for 47 days. A Lucknow judge denied them
bail, accusing them of "polluting the entire society." The prosecutor in
the case called homosexuality "against Indian culture." In jail guards
threatened and beat them; police told the prisoners they were "trying to
destroy our country by promoting homosexuality" and that "Hindus
don't have these practices-these are all perversions of the Muslims."[177]

In January 2006, the same police superintendent in
Lucknow oversaw the arrest of four more men under Section 377: the police said
they were engaged in a "picnic" in a public place, and accused them of
belonging to an "international gay club." An attorney in the case told Human
Rights Watch that undercover police agents logged into an internet chatroom and
pretended to be gay men, entrapping one of the victims into meeting, then
arrested him. In custody, he was threatened until he agreed to call several
acquaintances and arrange a meeting in person, at which point the police
arrested them as well. Press reports suggested that police obtained the
mobile telephone numbers or identifying information of 18 to 40 other gay men
in Lucknow, and that they were also investigating hundreds of other men in
India who had logged onto the website. [178]

Section 377 continues to provide a pretext for police
harassment, extortion, arrests, unreported and arbitrary detention, and other
abuses against LGBT people in India.[179]
The law creates legal stigma for lesbians as well. In 2006 in New Delhi the
father of a 21-year-old woman told the police that his daughter's lesbian
partner had "abducted" her. A magistrate refused to accept the daughter's
statement that she had left the parental home of her own free will, saying, "it
appears that …there are hidden allegations of an offence under Section 377 as
well."[180]

Reports also continue in India of forced detention of
lesbians and gays in psychiatric hospitals, and involuntary aversion therapy
and other forms of abuse aimed at "converting" people to
heterosexuality. In April 2001 the National Human Rights Commission of India
declared that it "did not want to take cognizance" of a case
objecting to these medical abuses. The commission stated that "sexual
minority rights did not fall under the purview of human rights." [181] Reportedly a member of the Commission told the press, "Homosexuality is
an offence under IPC, isn't it? So, do you want us to take cognizance of
something that is an offence?"[182]

Pakistan

In late 2006, in Faisalabad, Shumail Raj and Shehzina
Tariq married in a ceremony that Tariq described as "a love marriage." Born a
woman, Shumail Raj identified himself as a man.

The case led to a full-blown public panic, coursing
through the media and eventually the courts. Raj had undergone two operations
to alter his physical appearance to match the gender he lived in. Headlines
nonetheless called them a "she-couple," a "same-sex couple," and two "girls" or
"lesbians," and described-and dismissed-their union as the country's first
same-sex marriage.[183]

Shehzina Tariq's father complained to police about the
marriage, and they launched an investigation, invoking Section 377. Hauled
before the High Court in Lahore, the couple told officials that Raj was a man.

A court-appointed panel of forensic doctors had, in the
end, to try to settle the issue of legal identity. As Human Rights Watch has
noted, "It was more important to identify the history behind Shumail Raj's full
beard and masculine build than to recognise his right to privacy, his dignity
and self-respect."[184]

Prosecutors chose ultimately not to try the pair under
377; the uncertainty over Raj's gender joined with the legal ambiguity over
whether the law could be used against what officials now saw as a lesbian
relationship. Clearly, though, the stigma the provision created helped set off
the investigation and sustain hysterical public pressure. On May 28, 2007, a
court sentenced the couple to three years' imprisonment for perjuring
themselves - for saying in court that Shumail Raj was a man. The judge
called the sentence "lenient."[185]

Sri Lanka

Extending criminal penalties in 1995 to include sexual
acts between women led to an increased atmosphere of stigma and menace. The
leader of an LGBT support group has reported having to leave the country for a
time because of death threats.[186]
In 2000, when a lesbian conference was held on the island, a newspaper printed
a letter to the editor urging the participants be raped, "so that those wanton
and misguided wretches may get a taste of the zest and relish of the real
thing."

The Press Council, a state body, rejected a complaint
against the paper, citing the fact that "Homosexualism is an offence in
our law. Lesbianism is at least an act of gross indecency and unnatural." It
stated:

Lesbianism itself is an act of sadism and salacious.
Publication of any opinion against such activities is not tantamount to
promoting sadism or salacity, but any publication which supports such conduct
is an obvious promotion of all such violence, sadism, and salacity. Therefore,
the complainant is the one who is eager to promote sadism and salicity, not the
respondents.

The Council instead slapped a fine on the complainant,
one of the conference's organizers. [187]

Singapore

Singapore police periodically use its laws on homosexual
conduct to raid gay gathering places, including saunas: one raid in 2001 led to
four men being charged initially under Section 377A, though the charge was
later moved under Section 20 of the Miscellaneous Offences (Public Order and
Nuisance) Act. The men received a substantial fine.[188]
Further raids took place in April 2005.[189]
There may be no organized official campaign against such establishments.
Rather, local activists point to the enticing possibilities of blackmail that the
laws offer lower-ranking officers as an incentive to repeated incursions. The
provisions implicitly encourage arbitrary behavior.[190]

The government-conscious of its international image, and
of pressure from international business-has occasionally made gestures toward
non-discrimination, but its commitment to Section 377A strips them of meaning.
In 2003, the prime minister publicly said that civil service jobs were open to
gay people. Christian groups vigorously objected, and launched a protest
campaign targeting Parliament and press.[191] Two years later, a researcher interviewed civil servants about whether
the promise had any effect, and heard "a uniformly resounding 'no.'" He
concluded the prime minister's statement was "nothing more than an embellishing
discourse designed to make Singapore appear more attractive to potential
immigrants."[192]

Police keep tight control on all public or political
events in Singapore. In 2004, they banned a theatre group from holding seminars
on gay literature. [193]
Authorities have also denied permits to gay pride events. Censorship enforces
silence about LGBT people's lives.[194]
In 2004, the state film board banned a Taiwanese romantic comedy for its gay
themes, saying it "creates an illusion of a homosexual utopia, where … no
ills or problems are reflected."[195] In 2008, authorities fined a Singapore television station for a show
that depicted a gay couple and their baby, alleging it "promotes a gay
lifestyle."[196]
They also fined a cable station that aired a commercial with two women kissing,
because "TV advertising guidelines … disallow advertisements that condone
homosexuality."[197]

Perhaps the most serious side effect, though, is that the
state rejects all attempts by LGBT groups to register their organizations
legally. One activist laments, "The laws make for a chicken-and-egg problem.
In order to work towards decriminalization, the gay community has to get
organized, but organizing to defend a 'criminal act' in turn makes gay people
and their supporters cagey."[198]
One Singapore gay leader told Human Rights Watch in 2008: "In the absence of
legality, we are effectively breaking the law whenever we organize anything."[199]

Uganda

For years, Uganda's government has used the
criminalization of homosexual conduct to threaten and harass Ugandans. In 1998,
President Yoweri Museveni told a press conference, "When I was in America, some
time ago, I saw a rally of 300,000 homosexuals. If you have a rally of 20
homosexuals here, I would disperse it." True to his word, when (inaccurate)
press reports the next year recounted a wedding between two men in Uganda,
Museveni told a conference on reproductive health, "I have told the CID
[Criminal Investigations Department] to look for homosexuals, lock them up, and
charge them." Police obediently jailed and tortured several suspected
lesbians and gays; most later fled the country.[200]

Similarly, in October 2004, the country's information
minister, James Nsaba Buturo, ordered police to investigate and "take
appropriate action against" a gay association allegedly organized at Uganda's
Makerere University. On July 6, 2005, the government-owned New Vision
newspaper urged authorities to crack down on homosexuality: "The police should
visit the holes mentioned in the press, spy on the perverts, arrest and
prosecute them. Relevant government departments must outlaw or restrict
websites, magazines, newspapers and television channels promoting immorality –
including homosexuality, lesbianism, pornography, etc." That month, local
government officers raided the home of Victor Mukasa, an activist for LGBT
people's human rights and chairperson of Sexual Minorities Uganda (SMUG). They
seized papers and arrested another lesbian activist, holding her overnight. [201]

LGBT activists held a press conference in Kampala in
August 2007, launching a public campaign they called "Let Us Live in Peace." The
next day, Buturo, now ethics and integrity minister, told the BBC that
homosexuality was "unnatural." He denied police harassment of LGBT people,
but added menacingly, "We know them, we have details of who they are."
Four days later, the press announced that the attorney general had
ordered lesbians and gays arrested. "I call upon the relevant agencies to take
appropriate action because homosexuality is an offense under the laws of
Uganda," he reportedly said. "The penal code in no uncertain terms punishes
homosexuality and other unnatural offenses."[202]

The media intensify the metastasizing fear. In August
2007, the Uganda tabloid paper Red Pepper published a list of first
names, workplaces, and other identifying information of 45 alleged gay men. In
exposing the victims to firing or the threat of violence, the paper claimed it published
the list "to show the nation … how fast the terrible vice known as sodomy is
eating up our society."[203]

Nigeria

Arrests under Nigeria's federal sodomy law happen
steadily, as local headlines suggest: "Paraded by Police for Homosexuality,
Married Man Blames 'Evil Spirit' For His Unholy Act"[204];
or "Caught in the Act: 28-yr-old Homosexual Arrested by OPC While in Action.""[205]

Most of Nigeria's Northern provinces now have their own
penal codes. These combine principles of Islamic law with elements of the
Northern Nigeria Penal Code adopted at the time of independence.[206]

The penal codes of Kano and Zamfara states have simply
taken over the language of the British colonial provisions on "carnal
intercourse against the order of nature," and put it under the shari'a-esque
heading of "sodomy (liwat)." They provide punishments of 100 lashes for
unmarried offenders, and death by stoning for married ones. The Zamfara Penal
Code also criminalizes "lesbianism (sihaq)," punishing it with up to 50
lashes and six months' imprisonment:

Whoever being a woman engages another woman in carnal
intercourse through her sexual organ or by means of stimulation or sexual
excitement of one another has committed the offence of Lesbianism. … The
offence is committed by the unnatural fusion of the female sexual organs and or
by the use of natural or artificial means to stimulate or attain sexual
satisfaction or excitement."[207]

Courts in the north have handed down death sentences for
homosexual conduct under the combined shari'a-and-colonial codes, though
there have been no accounts of executions-yet. The UN special rapporteur on extrajudicial,
summary, or arbitrary executions reports that on a 2005 visit to Nigeria, he
asked to meet with all death-row inmates in Kano prison:

One of them was a 50 year old man awaiting death by
stoning after being convicted of sodomy. A neighbour had reported him to the
local Hisbah Committee [described by the Rapporteur as "groups of mostly young
men who patrol neighbourhoods with the aim of preventing crime and arresting
individuals suspected of committing crimes against the Shari'a"] which
carried out a citizen arrest and handed him to the police. He claimed to have
been comprehensively beaten by both groups. The official court records show
that he admitted to the offence, but sought the court's forgiveness. He had no
legal representation and failed to appeal within the time provided. The Special
Rapporteur subsequently took steps so that a late appeal could be lodged and
the case is now under review.

In December 2005 the Katsina Shari'a
Court acquitted two other men charged with the capital offence of sodomy,
because there were no witnesses. They had nevertheless spent six months in
prison on remand which the judge reportedly said should remind them "to be of
firm character and desist from any form of immorality."[208]

Although draconian provisions were in place at federal
and state levels, Nigeria's government tried to go further. In January 2006,
the president's office proposed new legislation called the "Same Sex Marriage
(Prohibition) Act." That was a misnomer: the bill's reach went far beyond
marriage. It would punish any "publicity, procession and public show of same
sex amorous relationship through the electronic or print media physically,
directly, indirectly or otherwise," and adoption of children by lesbian or gay
couples or individuals. It dictated five years' imprisonment for anyone,
including a cleric, who abetted a same-sex couple in marrying-and for any
person " involved in the registration of gay clubs, societies and
organizations, sustenance, procession or meetings, publicity and public show of
same sex amorous relationship directly or indirectly in public and in
private." In addition to condemning to prison human rights defenders who
address issues of sexuality, the bill could be used to jail even lesbian or gay
couples holding hands.[209]

Despite a push to rush the bill through the National
Assembly in early 2007, it eventually died without a vote. It could, however,
be revived at any time. In international arenas, Nigeria has continued its
campaign, openly calling for killing people who engage in homosexual conduct.
At the UN Human Rights Council in September 2006, Nigeria ridiculed "the notion
that executions for offences such as homosexuality and lesbianism is [sic]
excessive." Its diplomat said: "What may be seen by some as disproportional
penalty in such serious offences and odious conduct, may be seen by others as
appropriate and just punishment."[210]

It is appropriate to end with Nigeria, because the 2006
bill-criminalizing all aspects of lesbian and gay identity and life-culminated
the arc that Macaulay's Indian Penal Code began. Its all-embracing provisions
would render the bill uniquely severe among the world's anti-gay laws. The
trajectory from punishing acts to repressing a whole class of persons was
complete.

The paradox remains that a democratic government promoted
this repressive legislation as part of indigenous values, although it actually
extended old, undemocratic colonial statutes. "Basically it is un-African to
have a relationship with the same sex," the Nigerian minister of justice said
in 2006. A national newspaper intoned, "This progressive legislation is
expected to put a check on homosexuality and lesbianism, a deviant social
behaviour fast gaining acceptance in Western countries."[211]

Sodomy laws encourage all of society to join in
surveillance, in a way congenial to the ambitions of police and state
authorities. That may explain why large numbers of countries that have emerged
from colonialism have assumed and assimilated their sodomy laws as part of the
nationalist rhetoric of the modern state. Authorities have kept on refining and
fortifying the provisions, in parliaments and courts-spurred by the false proposition
they are a bulwark of authentic national identity.

The authoritarian impulse behind legal moves like Nigeria's
also points, though, to the emancipatory potential of decriminalizing
consensual homosexual sex.

The campaigns for law reform are not merely for a right to
intimacy, but for the right to live a life without fear of discrimination,
exposure, arrest, detention, or harassment. Reform would dismantle part of the
legal system's power to divide and discriminate, to criminalize personhood and
identity, to attack rights defenders, and to restrict civil society.

Removing the sodomy laws would
affirm human rights and dignity. It would also repair a historical wrong that
demands to be remembered. The legacy of colonialism should no longer be
confused with cultural authenticity or national freedom. An activist from
Singapore writes: "It's amazing" that millions of people "have so absorbed
Victorian prudishness that even now, when their countries are independent- and
they are all happy and proud they're free from the yoke of the British-they
stoutly defend these laws." He concludes, "The sun may have set on the British
Empire, but the Empire lives on."[212]
These last holdouts of the Empire have outlived their time.

[178]
Human Rights Watch, "Letter to Indian Prime Minister Singh on the Arrest of
Four Men on Charges of Homosexual Conduct in Lucknow," January 10, 2006.

[179]Human Rights Violations Against Sexuality Minorities in India: A PUCL-K
Fact-Finding Report About Bangalore, a report by Peoples' Union for Civil
Liberties-Karnataka (PUCL-K), February 2001, www.pucl.org/Topics/Gender/2003/sexual-minorities.pdf; and Human
Rights Violations Against the Transgender Community: A Study of Kothi and Hijra
Sex Workers in Bangalore, India, PUCL-K, September 2003.

[180]
Recorded in the "Intervention Application" filed by Voices Against 377 (a
coalition of civil society groups) in the ongoing challenge against Sec 377's
application to consensual homosexual acts, in the Delhi High Court, Civil Writ
Petition No. 7455/2001.

[194]
The government's power to censor is enormous, but scattered among several
agencies, meaning that standards are erratic and unpredictable-and leave
writers or artists perpetually unsure where the line will be drawn. See Alex
Au, "Making Sense of Censorship in Singapore," Fridae.com, January 30,
2007, http://www.fridae.com/newsfeatures/article.php?articleid=1846&viewarticle=1
(accessed August 28, 2008).

[206]
The entire concept of codification is alien to the spirit and history of shari'a
law, which traditionally is embodied in the scattered rulings of jurists in
the four Sunni schools. That shari'a advocates in northern Nigeria have
turned to imposing full-fledged codes further reveals how the colonial legacy
persists.

[207]
Article 135 of the Zamfara Penal Code,
http://www.zamfaraonline.com/sharia/chapter08.html (accessed August 25, 2008).
See also Political
Shari'a? Human Rights and Islamic Law in Northern Nigeria, a
Human Rights Watch report, 2004.

[208]
"Extrajudicial, Summary, or Arbitrary Executions, Report of the Special
Rapporteur, Mr. Philip Alston, Mission to Nigeria," January 7, 2006,
E/CN.4/2006/53/Add.4, at 21-24.

[210]
"Recognizing Human Rights Violations Based on Sexual Orientation and Gender
Identity at the Human Rights Council Session 2," ARC International (2006); also
available on Human Rights Council Website, www.unhchr.ch.

[211]
Minister of Justice Bayo Ojo, and the newspaper Nigeria First, both quoted
in "Nigeria: Government proposes law to ban same-sex marriage," IRIN Africa,
January 20, 2006, http://www.irinnews.org/report.aspx?reportid=57879 (accessed
August 26, 2008).